The State Department issued a thin Furlough Guidance Handbook to employees on January 4. It notes that State Department employees funded with no-year or multi-year accounts received their paychecks for pay period #25 on Thursday, January 3, 2019. Foreign Service annuitants received their December annuity payments on January 2, 2019 (Note that pension is not funded by annual Congressional appropriations but is drawn from the Foreign Service Retirement and Disability Fund). The Guidance says that State will also be able to make payroll for these employees for pay period #26 (actual pay date is January 17). What happens beyond that seems to be a big question mark beyond the nugget that CGFS will be issuing some future guidance.

Should the lapse in appropriations continue past the end of pay period 26 (January 5, 2019), the Bureau of the Comptroller and Global Financial Services (CGFS) intends to process payroll for pay period 26 to meet the Department’s Thursday, January 17, 2019 official pay date, for those individuals (both direct-hire employees and LE staff) who are funded using no-year or multi-year accounts that have residual balances. CGFS will be preparing and issuing T&A guidance for bureaus and posts for reporting time during any periods of lapse for pay period 26 and any later pay periods. Furloughed, excepted, and intermittent excepted employees who are not funded would not receive another pay check until there is legislation to permit payment.

We should note that a January 7 update to AFSA members flagged down a different date, which is this Friday, January 11:

In order to meet normal deadlines for processing payroll in time to meet the next payday on January 17, AFSA understands that funds need to be appropriated by Friday, January 11. The bill that funds operations at State and USAID passed the Senate Appropriations Committee in June by a 31-0 vote, but that bill has not yet gone before the full Senate. […]If that does not happen by the end of the week, however, some members of the Foreign Service (including some members who have been required to report to work) may not receive a paycheck on January 17. As a first step to preparing for that difficult possibility, members are encouraged to read the new Furlough Handbook to review options for coping with the financial consequences of the partial government shutdown.

Consular Affairs

An update on our query about Consular Affairs funding — we’ve heard from a source that CA/EX recently sent a notice to consular sections informing folks that the bureau “anticipates” being able to continue paying its staff and providing consular services as long as the funding situation with partner bureaus/agencies allowed them to continue providing service that generates revenue. Here are a couple of dire scenarios that have a potential to impact thousands of working people and their families, and not just within the State Department.

If partner agencies are not able to do their work due to the ongoing funding lapse, it could have a potential to derail consular services. Think DHS or FBI. Visa services require that applicant fingerprints, photo and personal data be sent to DHS for the purpose of checking the applicant’s fingerprint information against DHS databases and establishing a record within DHS’s Automated Biometric Identification (IDENT) system. Visa issuance data is then forwarded to DHS for use at US ports of entry to verify the validity of the visa. Visa services also require the transmission of applicant fingerprints and personal data to the FBI fingerprint system for the purpose of checking to determine if the person has a criminal record that would have an effect on visa eligibility. If DHS and FBI stop providing those clearances, embassies and consulates won’t be able to issue visas worldwide. And that would have a cascading impact on services, fees collected, and employees getting paid. Also if/when visa issuances stop, there will be economic consequences for the tourism, travel and hospitality industries. What’s that going to do to the international travelers spending in the United States, or travel industry employment, both direct and indirect employment?

We should note that DHS’s Automated Biometric Identification System or IDENT, is operated and maintained by OBIM (IDENT currently holds more than 200 million unique identities and processes more than 300,000 biometric transactions per day). OBIM resides in DHS’s Management Directorate. During the lapse in appropriations, the Directorate estimates 193 employees as the total number exempt/excepted employees to be retained out of a total of 1,777 employees. So they have people working over there but for how long? How long can people work with no pay?

Additionally, DOJ’s 2019 Contingency Plan says that “all FBI agents and support personnel in the field are considered excepted from furlough.” It also says that “At FBI headquarters, the excepted personnel will provide direction and investigative support to all field operations and excepted headquarters functions. This includes personnel in the Criminal Justice Information Services Division, which provides fingerprint identification services to criminal and national security investigations, and the Records Management Division, which provides name check services to criminal and national security investigations.”

Regarding partner bureaus — consular operations do not stand alone at overseas posts. They are not able to operate without security guards, typically locally hired security guards. Local guards are not under consular sections but under the purview of Regional Security Officers. They are funded under the Bureau of Diplomatic Security within the Worldwide Security Protection, an account that the State Department previously identified as “initially have [ing] available balances”. We don’t know how much available balances DS has, but when that account is depleted, there won’t be money to pay the local guards, and posts cannot just use comp time or issue IOUs. And if there are no local guards to provide this critical function, posts won’t be able to open their consular sections to the public. That will have a cascading effect on services provided, fees collected, employees getting paid, and beyond.

Also below, the State Department furlough Q&A includes the following;

On jobs during furlough: May I look for a job during the furlough if that is required to apply for unemployment compensation in my state?

A. A furloughed employee may seek employment without advanced authorization and can provide to the unemployment office any evidence that he or she is in fact seeking employment. Some States require claimants be engaged in an active search for work to be eligible for unemployment compensation. Department employees are reminded that relevant ethics laws, rules, and regulations continue to apply to them while in furlough status, including restrictions on outside employment with non-federal entities. For example, Department employees employed by a non-Federal entity during the furlough may later be restricted from participating in their official capacity in matters that affect that entity. If you have specific questions about your potential employment, you can contact EthicsAttorneyMailbox@state.gov.

For presidential appointees and covered noncareer employees (e.g., both noncareer SES and SFS and certain Schedule C employees), there are certain restrictions on outside earned income. Employees who file a Public Financial Disclosure Report (OGE 278e) must also file a recusal notice at negotiationnotice@state.gov when negotiating outside employment.

Injury while on furlough: If employees are injured while on furlough or LWOP, are they eligible for workers’ compensation?

A. No, workers’ compensation is paid to employees only if they are injured while performing their duties. Employees on furlough or LWOP are not in a duty status.

Can somebody please ask the State Department what happens to employees in war zones and high threat posts who may be injured during this shutdown?

Mental Health Resources:

MED’s Employee Consultation Services (ECS) office remains open with reduced staffing during the furlough. You can reach ECS at 703-812-2257 or email MEDECS@state.gov.FEDERAL

Medical Evacuation:

New medical evacuations and ongoing medevacs are considered excepted activities and will continue during the furlough.

Employee Health Benefits and Life Insurance: Will I still have coverage under the Federal Employee Health Benefits (FEHB) program during the furlough?

A. Yes, the employee’s FEHB coverage will continue even if an agency does not make the premium payments on time. Since the employee will be in a non-pay status, the enrollee share of the FEHB premium will accumulate and be withheld from pay upon return to pay status.

For Federal Employee Group Life Insurance (FEGLI), coverage continues for 12 consecutive months in a nonpay status without cost to the employee (5 CFR 870.508(a)) or to the agency (5 CFR 870.404(c)). Please note that premium payments are required if an enrolled employee in nonpay status is receiving workers’ compensation (5 CRF 870.508(a)).

The federal government shutdown is now on its third week, and at the 18th day, it is now the second longest since 1977. In three days, it will be as long as the Gingrich Shutdown in 1995 which lasted for 21 days. If the government is not reopened by this Friday, the Trump Shutdown will become the longest shutdown in over 40 years. Quick call Senate Majority Leader Mitch McConnell (touting his clout in DC) or tweet to @senatemajldr felicitations and congratulations for his exceptional non-adherence to the Framers’ system of checks and balances at this bonkers moment in history.

MATTIS FAREWELL: DefSec Jim Mattis kept a letter from Pres. Lincoln to LtGen. Grant in his office to remind himself to ignore the turmoil of Washington. I asked him to sign a copy for me last week. Today he cited the same letter in his farewell message to DoD employees. 1/2 pic.twitter.com/CHhhK8vEPV

Mattis retires today, over policy differences with the president. No ceremony. No honors. For comparison, here's how President Obama said farewell to Chuck Hagel (a Republican) who also left over policy differences. https://t.co/fyD6Rt6rV1

We understand that the OPM sample letters to creditors during the furlough are actually driving some of our readers “insane.” This blogpost is for you. The first Wayback Machine capture of opm.gov was January 23, 2013. You will note that the website does not include sample letters to creditors. But there was a shutdown on Tuesday, October 1, 2013, which lasted for 16 days. A December 31, 2013 capture of opm.gov includes a longer Furlough Guidance including Sample Letters for Creditors, Mortgage Companies and Landlords (Word file) [49.87 KB]. The four-page document includes a cover page titled, “Sample Letters”, and three temple template letters to creditor, mortgage company, and landlord.

In December 2016, OPM similarly had undated issued aSample Letters for Creditors, Mortgage Companies and Landlords (Word file) [85.5 KB] online. This document includes basically identical sample letters from 2013. The sample letters issued by OPM on December 27, right to that note about consulting “your personal attorney” is identical to the 2013 and 2016 versions. There were other government shutdowns prior to 2013, but the Wayback Machine does not include any opm.gov archive before 2013. It is possible that these letters existed prior to 2013 and they were just not archived online or they may have been created first in 2013 during the October 2013 shutdown to assist federal employees who encountered problems with creditors, mortgage companies, and landlords during a two-week shutdown. If you were at OPM or OMB and was nerdy enough to follow this in 2013, let us know.

OPM’s current version of the sample letters, although not marked as an update in the OPM website, removed the reference to a “personal attorney” and now just says “Following are sample letters that you may use as a guide when working with your creditors. OPM is not able to provide legal advice to individual employees.” This version is still four pages long but, it appears that OPM had also removed the last letter, the “Sample Letter to Landlord” and page 4 is now just an empty page. The Landlord sample letter includes the item about “the possibility of trading my services to perform maintenance (e.g. painting, carpentry work) in exchange for partial rent payments” which garnered a lot of attention on social media.

The Federal Bureau of Investigation (FBI) is seeking the public’s assistance in learning the identity of the two individuals allegedly responsible for the November 30 grenade attack on the U.S. Consulate compound in Guadalajara, Jalisco. The FBI is offering a reward up to $20,000 dollars in exchange for information leading to the identification and arrest of these individuals. Anyone with information about this incident or the identity or the whereabouts of these individuals is urged to contact investigators at a toll free number 001-800-225-5324 or at 33-3268-2349. All information can remain anonymous and confidentiality is guaranteed. Read more below:

The FBI, together w/ U.S. & Mexican law enforcement partners, is seeking the public’s assistance to ID those responsible for the 11/30/18 grenade attack on the U.S. Consulate compound in Guadalajara, Jalisco. FBI is offering a reward up to $20K for info. https://t.co/zTId6S38oJpic.twitter.com/8XnCKmS7DW

I have been privileged to serve as our country’s 26th Secretary of Defense which has allowed me to serve alongside our men and women of the Department in defense of our citizens and our ideals.

I am proud of the progress that has been made over the past two years on some of the key goals articulated in our National Defense Strategy: putting the Department on a more sound budgetary footing, improving readiness and lethality in our forces, and reforming the Department’s business practices for greater performance. Our troops continue to provide the capabilities needed to prevail in conflict and sustain strong U.S. global influence.

One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique and comprehensive system of alliances and partnerships. While the US remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies. Like you, I have said from the beginning that the armed forces of the United States should not be the policeman of the world. Instead, we must use all tools of American power to provide for the common defense, including providing effective leadership to our alliances. NATO’s 29 democracies demonstrated that strength in their commitment to fighting alongside us following the 9-11 attack on America. The Defeat-ISIS coalition of 74 nations is further proof.

Similarly, I believe we must be resolute and unambiguous in our approach to those countries whose strategic interests are increasingly in tension with ours. It is clear that China and Russia, for example, want to shape a world consistent with their authoritarian model – gaining veto authority over other nations’ economic, diplomatic, and security decisions – to promote their own interests at the expense of their neighbors, America and our allies. That is why we must use all the tools of American power to provide for the common defense.

My views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues. We must do everything possible to advance an international order that is most conducive to our security, prosperity and values, and we are strengthened in this effort by the solidarity of our alliances.

Because you have the right to have a Secretary of Defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position. The end date for my tenure is February 28, 2019, a date that should allow sufficient time for a successor to be nominated and confirmed as well as to make sure the Department’s interests are properly articulated and protected at upcoming events to include Congressional posture hearings and the NATO Defense Ministerial meeting in February. Further, that a full transition to a new Secretary of Defense occurs well in advance of the transition of Chairman of the Joint Chiefs of Staff in September in order to ensure stability Within the Department.

I pledge my full effort to a smooth transition that ensures the needs and interests of the 2.15 million Service Members and 732,079 civilians receive undistracted attention of the Department at all times so that they can fulfill their critical, round-the-clock mission to protect the American people.

I very much appreciate this opportunity to serve the nation and our men and women in uniform.

#

Leon Panetta tells us Jim Mattis’ resignation is a national security risk. “We’re in a constant state of chaos right now in this country…While it may satisfy [Trump’s] need for attention, it’s raising hell with the country.” https://t.co/OlobCcadw3

Hell of a quote from a senior official: “Mattis is the last brake on a president that makes major life-and-death decisions by whim…this president has not been tested by a major national-security crisis. But it will come, and when it does, we are fucked.” https://t.co/LJE8pSo65a

The chaos at year’s end is a reminder that the manner in which the Pres operates is so outside of any normal parameters for governing, so disdainful of process, & so heedless of consequences that his decisions don’t resolve crises so much as create them. https://t.co/LNRxt3NzOR

On November 27, the U.S. Office of Special Counsel (OSC) — not Robert Mueller’s but the federal agency with authorities to investigate cases related to the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA) — issued a new guidance regarding political activity. It says that its Hatch Act Unit has received several questions regarding whether the following constitute “political activity” for purposes of the Hatch Act:

1. Is strong criticism or praise of an administration’s policies and actions considered political activity?

Criticism or praise that is directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group is political activity. Absent evidence that the criticism or praise is so directed, criticism or praise of an administration’s policies and actions is not considered political activity. Whether a particular statement constitutes political activity depends upon the facts and circumstances.

Consider, for example, the administration’s recent decision to move the U.S. embassy in Israel to Jerusalem. An employee who strongly criticizes or praises that decision during a workplace discussion with a colleague in the days immediately following the decision is less likely to be engaging in political activity than one making those same statements in the run-up to the next presidential election—when the decision will likely have been out of the news for several years—to a colleague that the employee knows has strong feelings about
the subject.

3. Is activity related to “the Resistance” considered political activity?

To the extent that the statement relates to resistance to President Donald J. Trump, usage of the terms “resistance,” “#resist,” and derivatives thereof is political activity. We understand that the “resistance” and “#resist” originally gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies. However, “resistance,” “#resist,” and similar terms have become inextricably linked with the electoral success (or failure) of the president. During the period when President Trump was not considered by OSC to be a candidate for reelection the terms did not raise any Hatch Act concerns. Now that President Trump is a candidate for reelection, we must presume that the use or display of “resistance,” “#resist,” “#resistTrump,” and similar statements is political activity unless the facts and circumstances indicate otherwise.

Note that this presumption is only relevant to employee conduct that takes place on duty, in theworkplace, while wearing an agency uniform or insignia, or while invoking any official authority or inﬂuence. Provided that they comply with the Hatch Act’s restrictions, employees are free to engage in political activity while off-duty and away from the federal workplace.

In OSC’s example, if you tweet “I must #resist the temptation to eat another donut from the break room” – you would not/not be engaging in political activity but OSC would presume that “the use or display of the hashtags #resist and #resistTrump, in isolation, is political activity under the Hatch Act.” Read in full here.

The thing is, Foreign Service folks are considered on duty 24/7, so what does this guidance means in the real world? We’ve asked the OSC; will update if we hear anything back.

You may also call the Hatch Act Unit at 202-804-7002 or send an e-mail to Hatchact@osc.gov for your Hatch Act-related questions.

The point of the Hatch Act is to prevent an Administration from misusing federal employees for its own political purposes. Overzealous enforcement to bar federal employees from publicly _resisting_ bad policies turns the Hatch Act on its head. https://t.co/vxBnhNAmSM

I’m blessed to be leading the finest diplomatic corps in the world. The @StateDept team puts its heart and soul into the service of our nation. Susan and I appreciate these patriots’ and their families’ commitment to the mission, and wish all Americans a Happy #Thanksgiving. pic.twitter.com/WM359vMcDg

There are three categories of nonimmigrant visas for prospective students and exchange visitors. U.S. Immigration and Customs Enforcement administers the Student and Exchange Visitor Program, under which schools are certified for enrollment of foreign students (i.e., F and M visa holders) pursuing academic, vocational, or other nonacademic studies. The Department of State’s Exchange Visitor Program manages the issuance of J visas to exchange visitors with programs for foreign nationals such as teachers, certain scholars, au pairs, camp counselors, and professorial programs. Foreign nationals on F, M, or J visas in the United States are monitored through U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Information System.

F Student in an academic or language training program and their dependents.

J Exchange visitor and their dependents.

M Vocational student or other nonacademic student and their dependents.